Copenhagen, 18 March 2014.
BY Jacob Mchangama, The Freedom Rights Project.
According to the statute of the Council of Europe (CoE), the member states are committed to “individual freedom, political liberty and the rule of law, principles which form the basis of all genuine democracy”. It is difficult to think of a human right more essential to these principles than that of freedom of expression. Freedom of expression has been crucial in the fight for an enlightened, free and tolerant Europe for centuries, whether in the struggle against repressive religious authorities, absolute rulers, fascism or communism. Yet worryingly, the Council of Europe’s Commissioner for Human Rights, Nils Muižnieks, seems to regard freedom of expression as a danger to rather than a precondition for the founding ideals of a free and democratic Europe.
In recent blogs, Mr. Muižnieks has called for member states to criminalize Holocaust denial as well as gender based hate speech. These proposals arguably fall afoul of international human rights norms and are extremely unhelpful in the global battle over the permissible limits of free speech. With the exception of an additional protocol to the CoE convention on cybercrime (which allows for opt outs and only applies to acts “committed through computer systems”), no human rights instrument requires the criminalization of Holocaust denial per se. The EU Framework Decision on Combating Racism and Xenophobia obliges EU states to criminalize “publicly condoning, denying or grossly trivializing” certain international crimes, including those committed during WWII, but only when “carried out in a manner likely to incite to violence or hatred against” certain groups based on race, ethnicity, etc. It is also true that the European Court of Human Rights does not protect Holocaust denial as freedom of expression, but the Court has not identified the criminalization thereof, as a positive obligation under the European Convention of Human Rights.
Accordingly Mr. Muižnieks proposal has only the vaguest legal basis in European human rights instruments. Moreover, his recommendation is in direct contravention of Article 19 of the International Covenant on Civil and Political Rights (ICCPR). In its General Comment 34 from 2011, the Human Rights Committee clarified that “The Covenant does not permit general prohibition of expressions of an erroneous opinion or an incorrect interpretation of past events.”
Mr. Muižnieks’ recommendation that CoE member states “prohibit by law any advocacy of gender hatred that constitutes incitement to discrimination, hostility or violence” has an even more tenuous legal basis. The proposal is modelled on the wording of ICCPR Article 20 (2), yet nowhere is “gender” mentioned as a protected category. Moreover, no other major human rights instrument, nor most countries in or outside Europe, include gender among the groups protected by hate speech bans. Mr. Muižnieks’ recommendation thus not only dramatically expands the scope of existing hate speech bans, it creates whole new categories out of thin air to the serious detriment of freedom of expression, which incredibly Mr. Muižnieks doesn’t even mention.
The Commissioner’s emphasis on limiting rather than expanding the protection of freedom of expression contrasts not only with the views expressed by the UN’s Human Rights Committee, but also with those of the UN Special Rapporteurs on Freedom of religion and belief and Freedom of Expression and opinion, as well as with the OSCE’s Representative on Freedom of the Media. These independent human rights experts have all highlighted the central importance of freedom of expression. In this sense they have been extremely careful to emphasize that limitations to freedom of expression should be narrowly construed and convincingly established in order to safeguard against abuse. They have also highlighted the importance of the limited capability of criminal law in fighting hatred and racism and the importance of freedom of expression in countering such sentiments and fostering tolerance.
In a recent interview the OSCE Representative on Freedom of the Media stated that “my answer always [to hate speech] is fight hate speech with more speech…More speech can fight hate speech much better than introducing restrictive legislation and over-regulation.”
During the ongoing twenty-fifth session of the Human Rights Council the Special Rapporteur on Freedom of Religion and Belief stated remarked concerning Article 20 ICCPR that, “It cannot be emphasized enough that this provision does not demand a prohibition of sharp or even hostile speech in general: instead it concentrates on such forms of hatred advocacy that constitute ‘incitement’ to real acts of discrimination, hostility or violence.”
This was also the consensus outcome of the groundbreaking Rabat Plan of Action, a series of expert workshops conducted under the auspices of the United Nations High Commissioner of Human Rights with the participation of experts from all continents as well as UN Special Rapporteurs and members of UN human rights Treaty Bodies. The outcome document explicitly warns against adopting new limitations not included in ICCPR Article 20(2) and that this provision “requires a high threshold because, as a matter of fundamental principle, limitation of speech must remain an exception.” Quite clearly, Mr. Muižnieks’ recommendations fall considerably a foul of this consensus by erring on the side of restrictions rather than freedom.
In a world where authoritarian governments increasingly clamp down on freedom of expression, it is crucial not to legitimize this development by providing them with cover in the form of vague and sweeping interpretations of limitations to freedom of expression in human rights conventions.
During the drafting of the ICCPR, Eleanor Roosevelt warned that hate speech bans “would encourage governments to punish all criticism under the guise of protecting against religious or national hostility.” It is bitterly disappointing that the top European human rights official seems oblivious to the very real dangers of diluting freedom of expression through the best of intentions.
(Photo: Council of Europe)